Nepali judiciary lacks mechanism that ensures "judicial accountability"

-Dinesh Tripathi, Advocate, Supreme Court, Nepal

I began my career as an advocate at the nation's apex court some thirteen tears ago. To tell you frankly, I am enjoying being in this profession.

To me this profession is a challenging one posing challenges to the advocate as many new and unexpected social issues confront us at times. We have to take up those social challenges and prove ourselves worth tackling the newly emerging situation.

I belong to the schools of thought who believe in the theory that an advocate is a full time student who has to keep learning to adapt to the emerging situations. Thus we are left with no options other than to study ad infinitum.

It is well said, "If a lawyer puts down the lid to the books, he or she ceases to be a lawyer".

The other factor that forced me to join this sector is that I was guided by the philosophy, which says that "one should enter into a career which provides enough excitement and satisfaction". So I opted to take up this challenging occupation. I must admit that I have enjoyed each and every minute in this profession.

Regarding the prevalence of corruption in the judiciary, well let me question you, where is not corruption in the country? Take the example of the executive, the bureaucracy and the legislature as well. Days in-days out, you the media people cover the cases of corruptions in various important institutions. This way, I must admit that we or say the judiciary can't be the exception to this some what a rule. The judiciary too is a part of the Nepali society and the behavior and the culture that dominates the society at a particular moment of time has its impact on the judiciary as well. The judiciary is not corruption free, indeed. But then yet let me dare to say that it is the "least corrupt" comparatively speaking. The judiciary would have excelled in corruption had the system of justice were free from providing verdicts by exceeding the judicial limits. We have set of laws. We have set of precedence and lots of laws and legal procedures that have got to be adopted while deciding cases. These limitations indeed limit the very scope and the horizon of the verdicts which is what could have made the judiciary less corrupt than other constitutional organs of the State.

A judge has his limits. He can't cross the limits allowed him while deciding verdicts or else the institution itself will loose credibility and the honor that it still enjoys in the eyes of the common people. The judge has to provide reasoning and if the reasoning is itself untenable, he or she will instantly come under penetrating eyes of the press that has of late become pretty vibrant and aggressive too.

The 1990 Constitution has indeed hugely empowered the Nepali judiciary and of late the judges or for that matter the courts have begun asserting itself and in the process have been instructing the government to pay due attention to the issues that were of vital interests to the people. Such empowerment of the court which I prefer to call judicial activism have benefited the people albeit. Look! How the Supreme Court this time sent instructions to the Royal nepal Army—a thing that was never practiced in the past. A rare event indeed. However, equally true is that we lack what I would modestly call an effective mechanism to monitor the "judicial accountability".

The judiciary is such an institution that sans police and the army and thus it has to set itself into order by providing mechanisms that guide the proceedings and the culture and the behavior of the courts and those of the Honorable justices.

Judiciary is said to be the least dangerous of all the organs of the State. Now it has become most aggressive. Now it orders the state on so many societal issues. It appears that the courts are asserting power. A change is evident these days.

It is not for nothing said that the "constitution is that what the judges say".

More or less there has been a trend seen in the region that our courts have become assertive of late. The courts of SA region apparently have widened their scope and the horizon.

So far as the case of drug-lord Robinson case is concerned, let me not penetrate into the matter because it is a sensitive issue. But then yet what I would wish to tell you that now it was time that the judicial council of for that matter the Chief justice at the SC devise a mechanism that ensures judicial accountability. It is this lack of this mechanism that has blown the matter.

The CJ must now initiate actions that enhances the credibility of the courts or else the courts will lose its weight and respect and honor in the eyes of the people.

Well, the judges and the advocates of late are being alleged that both combine to influence the verdict of the case under the influence of money. This is just an allegation which is not correct. Well, I admit that not all the lawyers are sacrosanct but then yet the blame could be shifted to the judges, as it is they who decide the cases not the lawyers.

We have been taught that justice should be provided without fear and favor. This is the bottom line. It is an altogether a different matter that we presumably fail to stick to the bottom line.

"The combination of the Bar and the Bench is what is called the judiciary".

On political question, well for me as a senior advocate, I see the continuation of regression in Nepali politics.

The fact that no efforts have so far been made to activate the constitution and that the article 127, indeed a controversial one, has been used repeatedly in the making and unmaking of governments. As a lawyer, I must say you that article 127 is simply a procedural article which is being used in a different context and meaning. Since the article 127 sans the sanction of the parliament, the article itself is as good as dead. What is being extracted out of the article goes contra to the spirit of the 1990 constitution.

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